Docket No. 102225.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

THE PEOPLE OF THE STATE OF I LL INOI S, A ppelle e, v. AARON JAMA

R HOUSTON , Appella

nt.

Opinion filed August 2, 2007.

JUSTICE FREEMAN delivered the judgment of

the cour t, with opinion. Chief Justice Thomas and

Justices Fitzgerald, Kilbride, Garman, and Burke concurred in the judg ment and opinion. Justice Karmeier dissented, with opinion.

OPINION

After a jury trial in the circuit cour tof Peoria County, defe

ndant Aaron Jamar Houston was convicted of the offense of armed robbe ry (720 IL CS 5/18 –2(a

) (We s t 2000)). The circuit court imposed a sentence of 20 y

ears’ im prisonme nt. The a ppellate court affirmed

his convict ion and sentence in all respects. 363 I ll. App. 3d 567. W e granted leave to appeal. 210 Ill. 2d R. 315. For the reasons set forth below, we

remand t he cause to the cir cuit cour t with dire ctions.-2- BACKGROUND The charges aga

inst defendant arose from an armed robbery

of a restaurant on July 11, 2002. The case was tried before a jury . Before trial began, the court

inquired of

the State and defe nse coun sel as to their preferences reg arding recording of the voir dire of th e j ur y: “[THE COURT:] Coun sel, wha t do y ou want to d o relative to having a court

reporter take the actual voir dire; do you wish to hav e it reco

rded or n ot? [Defense Counsel:] I don’t need it recorde d. [State:] No, People waive. THE COURT: Then the court reporter will be waived for the actua l taki ng of the

voir dire . [To the co

urt reporter:] When I r ead t

he lis t of w itnes ses a

nd put the 1 2 in th e box, then you’re

free to go. [Defense Counsel:] Judge, subject to coming up– THE COURT: That’s right, she’ll be available.” Voir dire commenced without being recorded by the c ourt reporter. The court went back on the record afte r the 12 jurors had been picked to indicate

that at th at point there was only one prospective juror remainingas a possible alternate. The cour t stated that it

was too la

te inthe day to reque st additional prospective jurors, so either the parties could agree to go to tr

ial wit h a single alternate juror if the final prospective juror wa s accep table, or return the following day, pick two alterna te jurors and proceed at that point. Defense c ounsel and the State each ind

icated that it would

be acce ptable to go to tr

ial with a single alterna te juror. Af

ter conf irming that this was acc eptable to both parties, the court stated: “Okay . And I take it y ou continue your waiving of

the co ur t re por te r f or the voi r dire fo r the alte

rn at e?” Defens e counsel and the State each assented, and the cour tr eporter
was again e

xcused. Th e altern

ate was apparently

deemed acceptable, and the c ase proc eeded to trial. At the close of evidence, the jury

found defendant guilty

of armed

ro bb er y. The trial court then set Jun e 1 3, 2003, as the date for posttrial motions and sentencing. On April 24, 2003, defendant sent the court a handwritten pro se motion for a

new trial, which the court received on April 28. In addition to pointing out alleged inco nsi stencies in the test imony that formed the ba sis of his-3- conviction, defendant also complained regarding

the composition of his jury . Specifi cally , defend ant, who i s Africa

n-Ameri can, wr

ote to the judg e as follows: “I know you tried

to be fair as possible and you was but I felt

a predjudice [ sic ] and discrimanating [ sic ] patter[n] going on with the jury. I ’m not predjudice [ sic ] but I strong feel some of the jury was. I

mean let’s look at

it eleven white people and one black person ***.” Defendant

further allege d, in his pro se motion, that the lone AfricanAmerican juror , a wom an, st ated d uring voir dire that she did not know defendant, but that defendant subseq ue ntly learne d that this jur ordid in fact know him. Defendant alleged, in a ddition, that the prosecution

wanted this per s on on the jury beca use her brother had recent ly bee n m urd ere d. In defendant’s view, she ha d stro ng feeli ngs “about guns and people being shot.” OnMay 14, 2003, def

ense cou nsel file d a motion f

or a new trial. Inthis motion, defense

counsel stated, in relevant part: “That of the twelve jurors in this cause, there was only on e black and when the court as ke d s ai d b la ck la dy * ** if sh e k ne w a nyo ne, eith er the at to rn eys or an y o f t he proposed witnesses or the Defendant[,] she stated she did not know the Defe ndant[,] but i

n reality said Defendant has subsequently lear

ned that said black lady

did know him.” OnJune 13, 2003, the trial court hel d the previously schedule d hearing on the motion for a ne

w trial. D uring th is hearin g, def ense counsel emph asize d, i n particular, the allegation reg arding the Af rica n-American

juror “who denied, in effect, that she knew a nyone, any of the parties, the Court, or any one else.” The State respo n ded that defendant never made

this objec tion durin g voir dire . The State added that “the re were severa l pe remptory

challen ges use d, at lea st seven by the de fense; I think six by the State.” The trial court

denied the motion for a

new tria l. In e xplaining this decision, the trial court specifically addressed the claim regarding the Africa n-Ame rican juror who

allege dly denied kn

owing de fendant

. The tria l court ru led that there wa s no fact

ual basis for this c laim. After denying the motion for a new trial, the c ourt conducted a sentencinghearin g. During this hear ing, the State acknowledg ed that, according to the evidence presented at trial, defenda nt“ was not the-4- individual that wa s arm ed.” The presentence investiga tion report indicate d that def

endant, who was born on November 15, 1984, left high school in 1999 when he was about 15 y ears of a ge. At the conclusionof the hearing, the t rial co urt sentenced defendant to 20 ye ars’ impr

isonment. Defendant

appeale d, and a divi ded appe llate cou rt affir med his convictionand sentence. 363 Ill. App. 3d 56 7. The court found that the evidence was sufficient to uphold defendant’s conviction, found

no reversible error

in the fact that the voir dire was not recorded, and denied de fendant ’s claim o f ineffe ctive as sistance of counse l. I n h er disse

nt, Justice M cDade p ointed to Su preme Cou

rt Rule 608(a)(9), which requires that “court reporting pe rsonnel *** take the record of the pr oceedin gs reg arding

the sele ction of the jury .” 210 Ill. 2d R. 608(a)(9). Justice McDade noted that the failure to record voir dire in the case at bar

ran dire ctly

counter to Rule 608(a)(9), which, inJustice McDade’s view, was mandatory. She stated: “This is a rule of criminal procedure and, as is thecase with all the supreme court’s rules that fall into that categ or y, i t is mandat

ory ; it is a rule of procedure, n ot a mere

sugge stion.” ( Emphasis i n original.) 363 I

ll. App. 3d at 579 (McDade, J., di ssenti ng). According to Justice McDade , the cau se should have bee n remand ed for a new tria l.

ANA LYSIS Befor e this cou rt, defe ndant ra ises two di stinct cha

llenge s to his conviction. The first concerns the voir dire proceedings. The second relates to trial counsel ’s failur e to submit a

jury instructi on. With regard to the v oir dire procee dings, d efenda nt conten ds that (1 ) his trial counsel was ineffective for waiving the court

report er duri ng voir dire , and (2) the trial co urt impr operly allowed voir dire to proceed with no court reporter present, thereby depriving defenda

nt of due process. We turn first to defendant’s assertions of error duri ng voir d ire

. Both of his arguments in this regard con cern the failure to record proceedings in violation of Rule 608 (210 I ll. 2d R. 608). Pr el im in ar il y, we note that article VI of our supreme court rules governs criminal

cases, a nd within a

rticle VI, Rul e 608 dea

ls with the record on appea l. Subsect ion (a)( 9) of Rule 608 , which focuses on1 Prior to 1986, subsection (9) of paragraph (a) provided o nly that the “ju dgme ntand sentence” in a crim inal case were am

ong the item s to be included in the record on appe al. 87 Ill. 2d R. 608(a)(9). Paragraph (a) was amended in 1986. As am

ended, sub section (9) required, am ong other things, that c ourt repo rters in cases where a sen tence of death was not im posed were “t o take notes o f the jury

-sele ction pr

oceedin gs, b ut t h e transcription

of such notes [ was] re quire d only whe n reque sted by a party.” 210 Ill. 2d R. 608, C omm itt ee Co mme nts, at cclxvii. Thoug h subsection (a)(9) has undergo ne mi n or modifications since then, it has remain ed essentially unchang ed.

-5- voir dire , provides that, in cases where a sentenc e of death is not imposed: “[T]he court reporting personnel *** shall take the record of the procee dings regarding the selection of the jury, but the record need

not be transcribed unless a party designates that suchproceedings be included in the record on appeal.” (Emphasis added.) 210 Ill. 2d R. 608(a)( 9). 1 Rule 608 does not

defin e the terms “record” and “tra nscribe.” Webster’s T hird New International Dictionary define s “rec ord” as “a n account in writing or

print *** intended to perpetuate a knowledge of acts or events” and, more sp ec if ic al ly, “an official contemporaneous

mem orandum st ating the proceedings of a c ourt of justice.” Webster’s Third New Interna

tion al Dictionary 1898 (2002). The term “tran scribe” is defined as “to make a written copy of.” Webster’s Third New International Dictionary 2426 (2002). While Black’s Law Dictionary

appears to conflate the terms “rec ord” a nd “tr anscrip t” (Black’s Law Dictionary

1279 (7th ed. 1999) (defining “recor d” as including a “tran script of the trial o r h earing ”)), the

sense of Rule 608(a)(9) cle arly is that “re cord,” as in “take the record of the procee dings regarding the selection of the jury,” is to be differentiated froma transcription. The rule states: “the record [of the procee dings regarding the selection of th e jury

] need not b e transc

ribed unl ess a party designa tes tha t such proceedings be included in the rec ord on appea l.” 210 I ll. 2d R. 608 (a)(9) . The pla in meanin

g of the rule i s that, in cases other than those where a sentenc e of death is imposed,

a record of the procee dings regarding the selec tion of the jury is to be take nbut that a transcription, or copy , need not be made unl es s-6- requested by a party

for inclusio n in the record on appeal. Of

ne ce ss it y, if the voir dire record that Rule 608(a)(9) requires to be taken must be tra

nscribe d, if req

uested, f or inclus ion in

the record

on appeal, this initial record mus t be compl ete enou gh to be so transcribed

and included. Our c onstruct ion of Rule

608(a)( 9) is in accord with the previous version of the rule, which stated, in pertinent part: “the court repo rter

shall take full stenog

raphic not

es of the procee dings re ga rd in g t he se le ct io n o f t he ju ry, butthe notes need not be transcribed unl es s a party de signates that such proceedings be included in the record on appeal.” (Emphases adde d.) 177 Ill. 2d R. 608(a)(9). This co ur t h as ne ve r d ea lt ex pr es sl y w ith Rule 608(a)(9). However, People v. Thompkins , 121 Ill. 2d 401 (1988), a case which

was cited t o us by the State, has bee n relied upon by our a

ppellat e court in determining whether the failure to ensure the rec ording of voir dire , in violation of Rule 608(a)(9), constituted ineffective assistance of counsel. People v . Ash , 346 Ill. App. 3d 809 (2004); Pe ople v. Morris , 229 Ill. App. 3d 144 (1992). I n Thompkins , we rejected the defendant’s claim that his counse l was per se ineffective for failure to insist upon the presence of a court reporter during voir dire

. Citi ng People v. Steel , 52 Ill. 2d 442, 452 (1972), we concluded that “the mere failureto obtain the presence of a court reporte r during voir dire does not

constitute a per

se presumpt

ion of ine ffectiv eness of counsel.” Thompkins , 121 Ill. 2d at 448. I n reaching this decision,

we noted that the criteria for de term ining incompetency of counsel

are “strict.” Thompkins , 121 I ll. 2d at 44 7. Weexplained

that, under Strickland

v. Washington , 46 6 U. S. 668 , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (19 84), a defendant arguing inef fective assistance must show notonly that his counsel’s perf ormance was defic ient but that the defendant suffered prejudice as a result. In su pport of h is ineffectiveassistance claim, the defendan t i n Thompkins pointed to United States

v

. Cronic , 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984), whichdi scusse d, among other thin

gs, “c ircumsta

nces tha t are so likely to prejudice the accused that the cost o f litiga

ting the ir effe ct in

a particu lar cas e is unjustified.” Cronic , 466 U.S. at 658, 80 L. Ed. 2d 667, 104 S. Ct. at 2046. Thompkins conclud e d that the defendant’s reliance on Cronic was “in error.” Thompkins , 121 Ill. 2d at 448. The court explained : “[T]he fa

ilure to in sist

upon the presence of the court-7- reporter during a portion of the voir dire proceedings is not such an extreme and limite d c ircumstance, such as the total absence of counsel, where prejudice can be presumed.” Thompkins , 121 Ill. 2d at 448. This same principle–that prejudice may notbe presumed

from the

mere failure

to ensure the recording of voir dire –is reflected in People

v. Ash , 346 Ill. App. 3d 809 (2004), and Peo ple v. Mo rr is , 229 I ll. App. 3d 144 (1992). In Ash and Morris , also cited to us by the State,

our appellate court followed Thompkins and concluded tha t the failur e to ensure the reporting of voir dire , in vio lation of Rule 608(a)(9),

was not, in and of itself, ineffective assistance. Ash , 346 Ill. App. 3d at 813; Morris , 229 Ill. App. 3 d at 1 57. W e agree wi th th e hold ings in Thompk ins , Morrisand Ash –and in Steel , also cited to us by the State–that a waive r of th e court reporter for voir dire is not per se ineffective assistance of counse l, and we

hereby reaff irm this principle. In the case at bar, defendant, citing to Strickland , argue s ineffective assistance bas ed on his counsel’s waiver of the court reporter durin g voir dire . Unlike t he defendant in Thompkins , def enda nthere does not argue that prejudice should be presumed. Indeed, defendant in the instant case does no t cite to Cronic , which held that pre judice c ould be pr

esumed in

some instances, such as the total abse nce of c ounsel. Under the tw o-pro ng Str ickland test for determining whether assistance of counse l has bee n ineffe ctive, a

defenda nt mu st show that (1) his counse l’s perf

ormance was def icient in that it fell below an objective standard of reason ableness, and (2) the deficient performance prejudiced the defen dan t in that, but for counsel’s deficient performance, there

is a rea sonable probabilit

y that the r esult of the proceeding would have been different. People v. Evans , 209 Ill. 2d 194, 219-20 (200 4); Pe ople v. Peeples , 205 Ill. 2d 480, 512-13 (2002)

. In dem onstratin

g, unde r the fir st Strickland prong, that his counsel’s performance wa s defi cient, a defendant must overcome a strong presumptionthat, unde r the cir cumstanc es, counsel’s conduct might be considered sound trial strategy

. Peeples , 205 Ill. 2d at 512. Withregard

to the second

prong of Strickland

–the prejudice prong–a

reasona ble probability tha

t th e result w

ould have been dif ferent is a probab ility sufficie

nt to undermine confidence in the outcome. Evans ,2 Defendant also allege d that the lone African- American juror, a woman, stated during voir dire that she did not k now defendant, but defendant subsequ ently learned that she did in fact know him . This allegation of personal acquai

ntance is separ

ate and distin c t from defendant’s claim of racial discrim

ination in jury selectio n. We ag ree with the tri al court

that there was no f

a ctual ba sis in the record for def endant’ s person

alacquaintance allegation, which plays no part in o ur decision

in the case at bar.

3 Defense co unsel’s motion for a new trial also m ade no mention

of Batson

. This is not surprising, given that, as a result of cou

nsel’s waiver of the court r

eporter for voir dire , there was no re cord of the pro ceedi ngs
-8- 20 9 Ill. 2 d at 220; Peeples , 205 Ill. 2d at 513. I n order to pre vail o n
a claim of ineffective assistance, a defe ndant must satisfy both the performance and th e pre

judice prongs of Strickland

. Evans , 209 I ll. 2d at 220. As previously noted, defe ndant’s trial counsel twice waived the presenc e of the court report er duri ng voir dire : first, when the court

a s ked (before the start of trial) if counsel wante d a court reporter present and c ounsel answered that none was needed; and se cond, when the court asked the same question (later the same day)

regarding voir dire of the alternate juror and counsel repeate d his waiver of the court reporter. The result of this waiver was that, contrary to the dictates of

Rule 608(a)(9), no record was made of what occurred during jury

selection. Inthe case at bar, this lack of a voir dire record is consequential. As previous ly

indicate d, defen

dant comp lained in

his pro se motion for

a new tri al abou t t he co mp os it io n o f h is ju ry. 2 In that motion, after noting that there were 11 white persons bu t only one Afric anAmerican person on the jur

y, defendant stated: “I felt a pre djudice [ sic ] and di scrim anati ng [ sic ] patter[n] going onwith the ju ry .” This langua ge echoes language in Batson v. Kentucky , 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88, 106 S. Ct. 1712, 1723 (1986), whichheld that it was

a violation of the equal protection clause for the prosecution to use a peremptory

chal leng e to e xc lu de a prospective juror solely on the basis of race . Though

defenda nt’s pro se motion made no mention of Batson , 3 his complaintabout the racial c omposition o f his jury was aregarding jury selection. Had co

unsel asserted a Batson claim in his motion for a new trial, h e would

ultimately

have had to argue his own ineff ective assistan ce in or der to explain

the complete lack

of a voir dire record w

ith which to support the claim. In v iew of this situation, it m ight have be en advisa ble for the trial court to appo int different counsel to represen t defendant in his posttrial motion. See People v. Moore , 207 Ill. 2d 68 (2003); People v. Krankel, 102 Ill. 2 d 181 ( 1 984). Defendant’s trial took place over two day s in mid-April 2003, and the heari ng on defend ant’s motion for a new trial was held on June 13, 2003. Had di fferent co unsel beenapp ointed t o represe nt defen dant in his pos ttrial m

otion, it like ly would have been a f

airly s imple

matte r to reco nstruct the record of voir dire at that t ime, only t

wo months a fter tria

l.

4 In it s brief t

o this c ourt, the State does no t disput e that d efendan t’s complaint about the racial composition of his jury was a Batson cla im.

-9- Batson claim. 4 It would be manifestly unfair to require precise leg al

reason ing, including citation to authority, in a pro se claim drafted, as

was the instant claim, by an 18-y ear-old defendant

who lacked even

a high scho ol diploma. See, e.g. , People v . Smith , 268 Ill. App. 3d 574, 580 (1994) (

pro se postconviction petitions are given more liberal reading than are for mal pleadings prepared by counsel). The difficul

ty h ere is tha

t, having raised– or attempted to raise–a Batson claim, defendant had no voir dire record with whi ch to support it. According to defendant, the lack of a voir dire record made it virtually impossible

for him to p

ursue his Batson claim

on appea l. Indefenda

nt’s view , “it would

not be poss ible for

appella te counse l,

or the appellate court, to assess a Batson issue without a full recording of the entire voir dire proceedings.”Defendant asserts that his counsel’s waiver of

the court reporter for voir dire satisfie s both prongs of the Strickland test. Faced wit h the u nusual factual background of this case , we attempt to determine whether

trial counsel’s performance constituted ineffective assistance. We look first to wheth er this conduct fe ll below an objective stand

ard of r easonab leness. A s noted, th is court’s rules provide that “the court reporting personne l *** shall tak e th e
re cor d of the proceedings reg arding the selection of the jury .” (Emphasi s added.) 210 Ill. 2d R. 608(a)(9) . Counsel’s waiving of the court reporter in the case at bar ran directly counter to Rule 608(a)(9),5 While Batson and much of its progeny

deal with discrim

ination based

onrace, Batson has been extended to bar “discrimination in jury selection

onthe basis of gend

er.” J.E.B. v. Alaba ma ex rel. T.B. , 511 U.S. 1 27, 146, 128 L. Ed. 2d

89, 10 7, 114

S. Ct. 1419, 1430 ( 1994).

-10- whichwas promulgated precisely to avoid the type

of s ituation we

no w face . Here, on appea l, defen dant’s a ppellate counsel e

xpressly refers to the B atson cl aim initially raised by defendant at the trial level. Appellat

e counsel cannot pursue this claim on appeal, however, because of trial c ounsel’s

failure to comply

with our Rule 608(a)(9). Anexamination of

the pr ocedu re used in ass essin g Batson claims illustrates the difficulties resulting from trial counsel’s waiver of the court reporter. Batson established a three-step process for evaluating alleged discrimination in jury selection: “Fi rst, the defendant must make a prima facie showi ng t ha t the prosecutor h as exercised peremptory challenges on the basis of race. [Citation.] Second, once such a showing has beenmade, the burden shifts to the State to provide a raceneutral explanation for excluding each of the ve nirepersons in question. [Citation.] Defense counsel may rebut the pr offered explanations as pretextual. [Citation.] Finally, the trial court d etermi nes whether the defendant has met his burden of demonstr ating pur

poseful discrimination.” People v. Williams , 209 Ill. 2d 227, 244 (2004). At the first stag e, whe re the defendant is required to make a prima f ac ie showing of discrimination, courts are to consider “all re levant circumst ances” in deciding whether such a case ha s been established. Batson , 476 U.S. at 96, 90 L. Ed . 2d at 88, 1 06 S. Ct. at 1 723. This court has held that the following are among the r elevant factors to be considered

in determining whether the de fenda nt has demonstrated purposef ul discrim

ination a gainst A frican -Americ ans: 5 “(1) racial identity betwe en the defendant and t he excluded venire perso ns; (2) a pattern of strikes against AfricanAmerican veni repersons; (3) a disproportionate use of peremptory chall enges agains t African-America n venirep erso ns; (4) the level of African-America n representation

in the ve nire a s compared to the jury ; (5) the-11- prosecutor ’s quest ions and st ateme nts d uring voir dire examination and while exercising peremptory challenges; (6) whether the excluded African-American venirepe rsons were
a heterog eneous g

roup shar ing rac e as thei

r onl y common characteristic; and (7) the race of the defe ndant, v ict im, and witnesses.” People v. Williams , 173 Ill. 2d 48, 71 (1996). Considerationof several of these factors, p artic ularly the sec ond, third, fifth and sixth, would be di fficult i f not imposs ible witho ut a record of the voir dire

procee dings. Insuch circumstances, a defendant–such a s defendant here–faces serious obstacles in establishing a prima facie case of discrimination at the posttr

ial st a ge. It follows that, without a re cord of the procee dings during jury selection, the defendant would encounter the same, or greater, obstacles in pursuing a Batson claim on appeal. The appella te court wo

uld find it just as dif

ficult as the trial court to review such a claim. For these reasons, counsel’s waiver of the court reporter in the ca se at bar

falls below an objective standard of

reasona bleness. We can conceive of no possible

strategic advan tage that migh t have be en gained by waiving the court reporter for voir dire

. Defendant

has satisfied

the performance prong of the Strickland test by showing that his co

unsel’s p erforma

nce was deficie nt. Havingconcluded that

counsel’s performance was profess ionally deficie nt, we turn to the question of whether this conduct resulted in prejudice to defendant. Under Strickla nd , a defendant establishes prejudice by showing t

hat ther e is a re asonable

probabil ity

that, bu t for counsel’ s def

icient performance, the result of the proce eding would hav e been d

iffere nt. A rea sonable probabilit y is a probab ility sufficient to undermine confidence in the outcome. Peeples , 205 I ll. 2d at 513; Evans , 209 Ill. 2d at 219-20. Inthe case at bar, we cannot say that, as a result of counsel’s error, there is a reasonable probability that the resu lt would have been differe nt. We cannot

say this because , withouta voir dire record–the absence of which is directly a ttributable to counsel’s deficient performance–we

have n o way of de

termining the extent to which defendant was prejudiced. Ne verth eless, given the seriousness of defendant’s claim of r

acia l discri mination in jury selection, we ar e reluctant simply to deny defenda nt a ll relief based solely on our inab il it y, because of the lack of a voir dire record, to determine the6 The defendant’s conviction and sentence were su

bsequently affirm

ed

ondirect appeal in state court, and his

petitio n for habeas corpus relief was denied by the federal district court. The d efendant appealed, and the court of appeals concluded that the defendant’s Batson claim of discrimination injury selection could not be reviewed

effectively “w

ithout a transcript of the voir dire to allow

the reviewing

court to examine whom

the assistant prosecutor

excluded and why .” Sim mons , 44 F. 3d at 11 68. The court emph as ized

“the seriousness” of the Batson claim, and rem anded for the granting of habeas relief unless the State ag reed to retry the defe

ndant before a properly sele cted jury. Simmons , 44 F.3d at 11 67-68, 11 71.

-12- extent of the prejudice suffered by defenda nt. In our view , a middle course is preferable. In Simmons v. Beyer , 44 F.3d 1160 (3d Cir. 1995), as a result of the delay between the defenda

nt’s conv iction and his dire ct appea l in state co ur t, po rt io ns of

th e t ri al re co rd , “ in cl ud in g a le ng th y in camer a voir dire of prospective jurors,” were missing. Simmons , 44 F. 3d at 1 164. Faced with this situation, the state appellate court “remande d the case for the limited purpose of reconstructing the record, and the judges who had presided

over the jury selection and the remainder of t he trial and sentencing held reconstruction hea rings.” Simmons , 4 4 F.3dat 1164. 6 Similarly, in In re Taylor , 272 Wis. 2d 642 , 67 9 N.W.2d893 (App. 2004), also a Batson case, the proceedings on voir dire were not r ec orded. On remand, the trial court in Taylor held a hearing “at which the voir dire process was ‘reconstructed’ from testimony of the as sistant dis trict atto rney and defe

nse coun sel, handwritten

notes, and a jury pa

ne l roster. ” Taylor , 272 Wis. 2d at 648, 679 N.W.2d at 896. Fi na ll y, in People v. H

ud son , 195 Ill. 2d 117 (2001), this court remanded a Batson gende

r-discr imination c ase to the circuit court for

a hearing to deter mine if the

defenda nt, who ha

d failed to rais e the ge nde r-discrimination

claim in his direct appeal, had shown the necessary prejudice to excuse his procedural default. Thedefendant in Hudson , who was initially sentence d to death, had

raised a Batson race-discrimination

claim at t

he trial l evel and

on dir ect appea l, but this claim was rejected. While the defendant’spetition for certiora ri
was pending before the United States Supreme Court , that court decided J.E.B. v

. Alabama e

x rel. T.B. , 511 U.S. 127, 128 L. Ed. 2d7 In attempt ing to show, at trial, that the reasons for excluding the venireperson

were ra ce-n eutral, the Sta

te had a rticulated a po tentiall

y gender-related

reason.
-13- 89, 114 S. Ct. 1419 (1994), which extended Batson to prohibit gender discrimination in jury selection. The de fendant in Hudson filed a postconviction petition in which he claimed, rely ing on J.E.B. , that a female African-American veni

r eperson who had been struck by the State had been excluded on the basis of gender. 7 Because the defenda nt had fa iled to raise thi s gende

r-discr imination c laim in his direct appeal, this court conducted a cause-and-prejudice

analy sis to determine if

the defendant’s forfeiture of the c laim would be excused. We concluded that the defenda nt had show

n cogni zable ca

use for his failure to raise the claim earlier. However, we also concluded that “an evidentiary

hearing [was] need

ed in orde r to determine if

defendant ha[d] established the neede d p rejudice to excuse the procedural default.” Hudson , 195 I ll. 2d at 12 7. We state d: “with out fi ndin gs fromsuch a hearing, it is impossible to determine whether defendant has established the requisite prejudice.” Hudson , 1 95 Ill. 2d at 137. We theref ore remanded the

cause to the circuit court for a

hearing to determine if the State would have struck the African-Americ an female “even in the absence of any gender-related re asons.” Hudson , 195 Ill. 2d at 136-37. We noted that, if thehearing demonstrated that the State would have struck the venireperson even in the absence of the gender-related re ason, the defendant could not be said to have established

prejudic e and his c laim should be denied. If, on the other hand, the State was unable to pro ve this proposition, the defendant would have met his burden of showing prejudice and relief should be granted. The appropr

iate solut ion in the c ase at ba

r, si m ilar to Simmons , Taylor and Hudson , is to rema

nd this ca use to the circuit court for a hearing to reconstruct the voir dire record. We adopt thi s cours e, rather than s impl y denying defend ant relief, out of concern for the seriousness of defendant’s race-discrimination claim. See Simmons , 44 F.3d at 1168 ( remand ing for the gr anti ng of c onditiona l habeas relief after noting “the seriousness” of the defendant’s Batson claim and the court’s inability to review the claim absent a transcript of the voir dire proceedings). As the Court in Batson explained, “[t]he core-14- guaranteeof equal

prote ctio n, ensuri

ng citize ns that the ir State will not discriminate onaccount of race, would be meaningless we re we to approve the exclusion

of jurors on the basis of such assumption s, whicharise so lely

from the j urors’ race.” Batson , 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. In this instance, given the risk that a denial of relie f might a

mount to suc h approv al, we choose to remand the cause simply to determine w hether sufficient information about the voir dire may be g athered to ensure that racial discrimination in jur

y se lection is

not condoned by

this cour t. We emphasize the limited scope of o ur decision. We do not conclude that the failure to obtain the presence of a cour t reporter during voir dire

create s, in itself, a per se presumption of ineffective assistance of counsel. People v. Thompkins , 121 I l l. 2d 401, 448 (1988). Nor do we conclude that the mere failure to record voir dire , withoutany claim of e

rror in the jury se lection process, req u ires a remand for r econstruction of the jury-selection proceedings. See, e.g. , People v. Culbreath , 343 I ll. App. 3d 998, 1005 (2003). Th

is is not to

say , however, that our rules are unimportant. We point out that the difficul ty present ed in the case at bar could have been avoided had the trial judge si

mply followed the manda

te of Rule 608(a)( 9). Thiscourt has often noted that our rules ar e no t mere suggestions. Rather, “[t]hey have the forceof law, and the presumption must be that they will be obeyed a

nd enforced as written.” Bright v. Dicke , 166 Ill. 2d 204, 210 (1995). The situation here confronting us il lustrates the importanc e of our r

ules and t he need for comp liance w

ith them. We hold thatwhere, as in the unusualcase before us, a defenda nt attemptsto raise in the trial court a Batson claim of discriminationin jury selection, and the

claim may not be pursued because trial counsel waived the presence of the court reporter for voir dire , in violation of

our Rule 608(a)(9), resulting in the absence of a voir dire record, the appropr iate course, in the first instance , is to remand t o the cir cuit court for an attempt to reconstruct the record of t he pro ceedin gs
re ga rd in g t he se le ct io n o f t he ju ry. The dissent criticizes this approach as “ill conceived” and argues instead that we should simply affirm . Affir mance in this instance would do nothing to addr ess the difficulty, clea rly illustrated in the

caseat bar, that results from noncompliance with Rule 608(a)(9). The dissentitself recognizes the need for such compliance. The dissenting-15- justice notes, as do we, th at our rules, including Rule 608(a)(9), are notmere suggestions but rather have the force of law. T he dissenting justice adds, agai n agreei ng with us, that “the presumption must be that [our rules] are to be obeye d and enforced as written.” Slip op. at 24. Howeve

r, the dis sent’s on

ly a nswer to the diffi culty

presented by noncompliance with Rule 608(a)(9) is that we should “amend the rule’s provision s to includ e approp riate conse quen ces for

failure to follo w it. ” Slip op. at 24. This might be an appropriate remedy for future cases, but our task here is to a ddress th e case t

hat is ac tually before us. In this instance, a s we have stated, the proper c ourse is to remand to the circuit court for an attempt to reconstruct the voir dire record. This is far

prefer able to the affirmance approach urged by the dissen t, which

amounts to acquiescence in the face of nonc ompliance. Becau se of our dis

position of

this case , w e need not address, at this time, defendant’s other claims that (1) the trial court improper ly allowed voir dire to proce ed with no court re porter present, thereby depriving defendan

t o f due pro cess, an

d (2) tria l counsel failed to tender a j ury instruction on identification, there by render

ing ineffective assistance. A number of

cases c ited by

the State held that a trial court’s failure to pro vide a court report er duri ng voir dire was not a violation of due process. People v

. Ash , 346 Ill. App. 3d

809, 813 (2004); People v. Culbreath , 34 3 Il l. App. 3d 998, 100 5 (2003); People v. Morris , 229 I ll. App. 3d 14 4, 156 (19 92); People v . McClurg

, 195 Ill. App. 3d 381, 388 (1990). Because we donot address defendant’s due process claim, we need not consider these cases’ c onclusions regarding this issue. Pursuant to this cou

rt’s supe rvisory authority

, we reta

in jurisdiction and remand this cause to the c ircuit court of Peoria County for a hearing to reconstruct the voir dire re cord. Th

is reconstructed

record shall be f iled with the clerk of this co urt within 90 days of the da

te that thi s decision become s final.

CONCLUSIO

N The cause is remanded to the circuit c ourt with d irection s to hold

a hearing to reconstruct the rec ord of the voir dire proceedings which took plac e at tria

l.-16- Cause rem anded withdirection s.

JUS TICE KAR MEIER, d issen ting: Inthis case w e ar e calle d upon to c onstrue Su preme Cou

rt Rule 608(a)(9) (210 Ill. 2d R. 608(a)(9)). When interpreting supreme court rules, our court is guided by the same p rin ciples applicable to the constructionof

statutes. In re Estate of Rennick , 181 Ill. 2d 395, 404 (19 98) ; 134 Ill. 2d R. 2(a) & Committee Comments. With rules as with statutes, our goal is to asce rtain andgive ef fect the drafte rs’ intention

. In re Storment , 203 I ll. 2d 378, 3 90 (2002) . The mo s t reliable indicator of int ent is the la nguage used, which must be given its plain and ordinary

meaning. Robidoux v. Oliphant , 201 Ill. 2d 324, 332 (2002). The language of the r

ule at issue here provides that, in cases not involving a death

sentence, “court reporting pe rsonnel *** shall take the record

of the pr oceedin gs reg ardin g the sel ection of the jury.” (Emphasi s added.)210 I ll. 2d R. 60 8( a) (9 ). Ge ne ra ll y, use of the term “shall ” indicates an intention to impose a mandatory obligation. People v. Thomas , 171 Ill. 2d

207, 222 (1996). T

here is n o reason to ascribe a diffe

rent mea ning to the term h ere. The circuit court was therefore un der anobligatory duty to have the jury se lection proceedings recorded. The more difficult question posed by this appeal is wh at , i f a ny, consequences should flow from the fact th at the dictates of R ule 608(a)(9) were not followed. Th is is a s ep ar at e a nd di st in ct in qu ir y. As our court endeavored

to explain

in People v. Robinson , 217 Ill. 2d 43, 51-54 (20 05), it is one thing t o hold that a

gover nmental e ntity is under an oblig atory

duty which it is

require d to perform, as opposed to a permissiv e power

which it ma

y exercise or not as it c

hooses. It is something else ent

irely to hold tha

t the entit y’ s failure to comply

with its obligat ion should invalidate the action to which that obligation relates

. The former

inquiry concer

ns what has been described as the mandatory-pe

rmissive dichotomy. The latter, a nd the on e which

concerns us now, is the so-ca lled mand

atory -direc tory dichoto my

. People v. Robinson , 217 Ill. 2d

at 51-53; O’Brienv. W

hite , 219 Ill. 2d 86, 96 (2006). Whether a statutory command is mandatory or directory presents a question of law, which we review de novo

.-17- O’Brien v. W

hite , 219 Ill. 2d at

97. The sa

me is true where, as here, the command is rule-based. While use of the word

“shall” normally denotes t hat someth

ing is mandatory

when dealing

with th e m an da to ry- pe rm is si ve di ch ot om y, the term is not det er mi na ti ve wh en , a s i n t hi s c as e, th e m an da to rydirectory dichotomy

is at issue. People v. Robinson , 217 Ill. 2d at 53- 54. The court must look instead to other factors. In a ssessing whether

a requi remen t should be read as mandatory rather than directory , a court should consider whether the authors o f the requirement specified what

should happen

if the requirement is not met. When a provi sion ex pr es sl y pr es cr ib es a c on se qu en ce fo r f ai lu re to ob ey it s terms, that is strong evidence that the requirements of the provision

were intended to be mandatory. People v. Robinson , 217 I ll. 2d at 54. No such prescription was made here. N either Ru le 608(a)(9) nor any other subpa rt of R ule 60 8 spec ifies what, if anythi ng, should happen when the voir

dire is not recorded in a noncapital case. That does not necessarily pr

eclude the conclusion that the rule’s provisions

are mandatory

and not merely dire ctory. I n People v. Campbe ll , 224 Ill. 2d 80 (2006), for example, this court found that the trial court’s failure to comply

with the provisions of Supreme Court Rule 401(a) (134 I ll. 2d R. 401(a)), dealing with waiver of counsel, rendered the defendant’s convicti on fatal ly infirm. The re, as he re, th e rule contained no language specify

ing what would happe n if th e requi remen

ts of the ru

le were not follow ed. The c ommittee c omments to the rule, however, indicate that it had been amended

to confor m to the United States Supre me Court’s de cision in Argersing er v. Ham lin , 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972). As stated in the committee comme nts, that case held that under the United States Constitution, no imprisonment may be imposed unless the defendant

was represented by

counsel or has made a knowing and intellige nt waiver of his right to counsel. By refe rencin g this authority, the drafters of

the rule implicitly recog nized that there would be a consequence for noncompliance, a very serious one. In lig ht of that constitutionally based consequenc e, setting out the repercussions of8 Althou gh the analy sis in Campb ell purported to rely on the language o f Rule 401(a) rather than the underlying

constitutional principles g overning the right to coun sel, the

constitu tionally based conseq uences of noncompliance

are essential to the result it reached. If the existence of such consequ ences w ere absent

from the analy sis and the case rested so lely on the text of the rule, it could not be squared with theanaly tical fra mework

we set f orth i n People v. Robinsonfor und ersta nding th e mandato rydirector y dichotomy , nor could it be reco nciled with decisions such as People v. Henderson , 217 I ll. 2d 4 49 (200 5), wh ere we held that fai lure to comp ly with the adm

oniti ons re quired b

y Supreme Court R

ule 605 (a), which also employ

ed the word “shall,” did no t autom atically require reversal and rem

and in every

instance.

-18- no nc om pl ia nc e s ep ar at el y wa s u nn ec es sa ry. 8 No similar circumstances are presentin this case. The courts of Illinois have consistently rejecte d the claim that the failure to record voir dire violates c onsti t utional protections. See, e.g. , People v. McClurg, 195 Ill. App. 3d 381 (1 990). In contrast to People v. Campbell, the abse

nce in Rule

608(a)( 9) of an e

xpress consequence for failure to comply

with its provisions therefore cannot be attributed to the fact that a constitutionally base d remedy is ava ilable. Ido not see and the majority opinion has not identified any other factors that would s upport a conclusi on that fa ilure to c omply

with the recording

requirement

of Rule 608(a)(9), in and of itself, renders the subsequent trial invalid. Under the mandatory -director y dichotomy

our court has articulated, the rule’s recor ding requirement is therefore directory . As such, it may be waived by the parties. See , e.g ., In re Estate of Zander , 242 Ill. App. 3d 774, 777 (1993). That the rec ordin g requi rement may be waived is further

s upported by comparison to other situations in which waive r i s permissible. The courts of Illinois have rec o gnizedthat criminal defenda nts may waive suc

h rights as the r ight t o a speedy tr ial ( People v. Laws , 200 Ill. App. 3d 232, 235 (1990)), to counsel ( People v. Haynes , 174 Ill. 2d 204, 235 (1996)); to a jury of 12 ( People v. Barrier , 359 I ll. App. 3d 639, 642 ( 2005)); t

o conf ront witnesses agains t them (

People v . Campbell

, 208 I ll. 2d 203 (2003));-19- and to be free f

rom do ub le je op ar dy ( People v. Dieterman , 243 I ll. Ap p

. 3d 838, 843 (1993)). All of these rights are more sig nificant thanthe right to have jury

-selection proceedings recor ded. If they

can be waived, the ri ght to have j ury-selec tion procee dings record ed must likewise be subject to waiver. Any constru ction of

Supreme Court Rule 608(a)(9) that would y ield a con trary re s ult would, i n effect, confer greater protection

onthe right to have jury

selection recorded thanit would on the right to be tried by a jury . Such a result is absurd. We must therefore rejec t it. See In re Loss , 119 Ill. 2d 186, 194 (1 987) (a rule, like a statute, must be construed to avoid a n unjus t result). There is no dispute that a waiver of the recording requirement was made in this case by both the defe ndant and the State. Having waived strict compliance with Supreme Co urt Rule 608(a)(9), defendant cannot now assert that the failure to have the jury-selection procedure recorded pursuant to R

ule 608(a)( 9) was re

versible error. To hold otherwis e would re q uire us to ignore the well- established princ iple that a party may

not complain of error where doing so is inconsistent with the position he took in

the earlier court proceeding or where the alleged error is one to which he consented. McMath v . Katholi , 191 Ill. 2d 251, 256 (2000). The failure of trial counsel to insist on the presence of cour t reportingper sonne l duri ng voir dire is not a no vel cir cum st anc e. It has been co nsidere d by

the cour ts in Illinois on at le ast six

previous occasions. None of

those decisions support the majority’s re solution of th e c as e b ef

or e u s t od ay. People v. Steel , 52 Ill. 2d 442, 452 (19 72 ), was decided by our court over 30 yea

rs ago. In an a

rgument that echoes the one made on appeal in this case, the defendant in Steel contended that his trial counsel was incompetent for failing to insist upon the presence of

a court reporter duri ng voir dire because, among other things, that failure precluded defendant from establishing that the jury may have been prejudiced

against him. We rejected that argument, noting that there, as here , a court

reporte r was alway s available and could have been summoned at any

time. A similar sit

uatio n was present in People v. Thompkins , 121 I ll. 2d 401 (1988 ). The de fendant there a lso mainta

ined that the performance of

his court-appointed counsel was ineffective based, in-20- part, on th e l aw ye r’s failur e to insist upon the presence of a court reporter durin g voir dire . Accor

ding to the defen

dant, the failure to record jury selection wa s preju dicial be cause it “precl ud[ed] his appella te counsel f

rom raisi ng any potentia l is sues regarding i mprop er excusal of prospective jurors.” People v. Thompkins , 121 Ill. 2d at 447. Citing our previous decision in People v. Steel , 52 I ll. 2d 442 (1972), we rejected that contention , hol ding that the mere failure to obtain the presence of a court reporter

durin g voir dire

does notconstitute a per se

presumpti on of

inef fect iven ess o f cou

nsel. We further ruled that counsel’s failure to insist upon the presence of the court reporter during a portion of the voi r direpro ceedings was not suchan extreme and limited circumstance, such as the total absence of counse l, that prejudice could be presumed. People v. Thompkins , 121 Ill. 2d at 448. The issue next arose in People v. McClur

g , 195 Ill. App. 3d 381 (1990), in which the defend ant appealed her conviction for driving under the influence of alcohol. Prior to the commencement of the trial, the court had

advised the defendant that there were notenough

co urt reporters to make one available during jury selection, bu

t tha t
a reporter wou ld be a vai lab le l ate r so th at a rec ord cou ld be m ade . In assailing her

conviction, the defendant included among her numerous argume nts that the failure of the tri al court to provide a court reporter during voir dire

deprived her of the ability to preserve her objections for review and denied her right to due proc ess. The appellate court rejected that con tention, noting that the ru les of our court cl early provide alternative m etho ds for preserving the recor d where no verbati m transcript is available. In t he appellate court’s view, defendant could have availed herself of tho se rule s and submitted a bystander’s

report or agre ed state

ment of fa

cts. Be cause she failed

to do either, the court concluded t hat she h ad waived any

argument concerning

the sufficiency

of the record and the propriety of the trial court’s rulin gs durin g voir dire

. People v. McClurg, 195 Ill. App. 3d at 388. McClurg wa s f ol lo we d b y People

v. Morris , 229 I ll. App. 3d 144 (1992), authored by f

ormer Chief Justice McMorrow shortly be fore she was elected to our court. I n that case, which involved a felony prosecution, the court made some preliminary remarks to t

he initial group o f pr ospective jurors. It then asked de fense counsel and the-21- prose cutor to st ep forw ard to the be nch an d stat ed the follo wing:

“ ‘The court reporter informed me she has an appointment wit h her doctor. Would you please excuse her for th e impaneling of the jurors? Before doing that would a ll of the perspective [ sic ] jurors raise their right hands please. (WHEREUPON THE JURORS WERE SWORN IN.) THE COURT: Ms. Reporter, you are excused.’ ” People v. Morris , 229 Ill. App. 3d at 154-55. The court reporter

was then excused while voir dire was conducted. Th at was the only portion of the pr oceedings for which she was absent. Court reporting was thereafter r esumed for opening statem ents by the State and def ense counsel, as well as fo r th e remainder

of defendant's trial. Defenda nt was subsequent ly f

ound guilty and sente nced to a term of im

prisonme nt. Onappeal, defendant claimed that the trial court committed

revers ible error

when it permitted jury

selection to take place without transcription

by a court r

eporter. Follow ing the appr oach tak en in McClurg, the appellate cour t rejec ted this argument, holding that defendant could hav e obta in ed a bystande r's report or an agr

eed statement of facts as permitted under the rules of our cour t and tha t his failu re to d o so pr eclud ed him from a ssert ing t hat the court 's ruling was reversible error. People v . Morris , 229 Ill. App. 3d at 156. Ina relat ed argu me nt, the de fendant further contende d that his attorney was ineffective for having a greed to excuse the taking of voir dire by a court

reporter. The appellate court re jected this argument as well. Citing our decision in People v. Thompkins , 121 I ll. 2d 401, 448 (1988), it held

that def ense cou nsel's f ailure to obtain the presence of

a court reporter for voir dire

does not create a per se

presumption of ineffective assistance of counsel. To prevail on a clai m that the attorney was ineffective, the defe

ndant wa s requir

ed to point to some

e rror i n selection of the jury. T he court further held that it was incumbent

upon the defendant, as appel lant, to ob tain a bystande r's report, or stipula

ted state ment of fa cts, inlieu of a verbatim transcript of the voir dire. The cour t conclud ed that in

the case befor e it, defendant had failed to satisfy the se burdens. He was un able to speci fy an y particular

error that occurred during jury selection and failed to procure a

bys tander' s report

or stipula ted state ment of fa

cts-22- regarding jury selection. As a r

esult, the court reject ed defendant’s claim that he was entitled to a new tri al. People v

. Morris , 229 I ll. App. 3d at 156-57. People v. Culbreath , 343 Ill. App. 3d 998, 1005-06 (2003), i s in accord. In that case, t

he defen dant was tried on two counts of aggrava ted bat tery. On t he fir st day of t he tri al, th e presi ding j udge asked counsel for def

endant a nd the State if either party wanted a court reporter to b e p resent to record the voir dire . The State responded

in the negative. Counsel for defendant indicated th at he would be willing to waive the presence of a repor ter, subject to the understandingthe reporter would be nearby in cas e a re cord of something needed to be made. The court then ex cused the court reporter and proceeded with jury selection. A court reporter was present for the remaining proce edings in the case. Defenda nt was ultimately convicted, sentenc ed to a term of imprisonment and

ordered to pay restitution to his victim. People v. Culbreath , 343 Ill. App. 3d at 10 01. O n appeal, defendant raised various grounds for as sai ling the judgment. Among these were : (1) that by c onducti ng voir dire of prospective jurors without a court rep orter present to transc ribe the procee dings, a s requir

ed by Supreme CourtRule 608(a)(9) (177 Ill. 2d R. 608(a) (9 )) , the trial court had violated his righ t to due pr

ocess ; (2) t he failure to have a court reporte rp resent to transcribe voir dire resulted in the den

ial of his right to effective assistance of appellate c ounsel; and (3) his trial counsel did not h ave the autho rity to wa ive th e court report er's presence at voir dire

because that decision belonged to defe ndant alone. People v

. Culbreath , 343 Ill. App. 3d at 1005. The appellate court re

jec ted all these arguments. Following McClurg an d Morris , it reite

rated th e princi

ple that the failur

e to provide a court report er duri ng voir dire does not deprive a defendant of due proc ess. I

t furth e r held that because the rules of this court provide altern ate means for preserving the r ecord and because the defendant failed to avail himself of those options, defendan t wa s precluded from argui ng that t

he court’s failure to provide a court reporter durin g voir dire constitute d rever sible error. People v. Culbreath , 343 Ill. App. 3d at 1006. Fi na ll y, the appellate court concluded, based o n prece dent from this court, that the de cision to c onduct voir dire wit hout a co urt-23- reporter present was not a mong thos e which mu st be made persona lly by t he defe ndant. That decision, in the appellate court’s view, co uld be made by

defense counsel. In so

ruling, the appellate court rejected the notion that defense counsel’s waiver of the court re porter’s presence for voir dire

cre ates an inherent conflict of interest by creating a situation in which

counsel c ould prev ent th e de fendant fromr aising claims against him. The reason the wa iver does not create a conflict is that

it does not, in fact, preclude a defendant from challenging

his attorney ’s conduc

t d uring voir dire . As previously indicated, a defen

dant may

su bstantiate claims of ineffective representation

pertaining to voir dire

by means of

a bystander ’s report

or an agr eed st atementof facts. Neither of those options was attempted by the defe

ndant in that case. People v . Culbreath , 343 I ll. App. 3d at 1007-08. The sixth and most recent ca se, People v . Ash , 346 Ill. App. 3d 809, 812-14 (2004), was decided the y ear after People v

. Culbreath , 343 Ill. App. 3d 998 (2003), and involved a similar situation in which the trial cou

rt asked counsel f or the pa rties if they wished voir

dire to be recorde d by

a court reporter. Both declined. De fendant was ultimately

convicted

of a drug-possession

offense . As gro

unds for h is appeal, the defe

ndant ar gued th at the tri al court

committed

revers ible

error by failing to ha

ve jury-sel ec tion proceedings reported as required by

Supreme Court

Rule 608(a)(9) and that

his trial counsel rendered ineffective assistance by a greeing to waive the re cordingof voir dire

. People v

. Ash , 346 Ill. App. 3d at 812. As in all the cases which preceded it, the appellate c ou rt in Ash found these arguments to be without merit. Thecourt opined that the require ments contained in Rule 608(a)(9) could validly be waived

by counsel onthe defendant’s behalf and that the trial court wa s entitled to re ly on defe nse co unsel ’s deci sion to dec line h aving voir dire recorded. The court further held that defendant had fail ed to dem o nstrate

that his attorney’s dec ision to forgo recording of voir dire deprive d him of a f

air tria l. Defen dant’s c laim

was base d solely

oncounsel’s decision to allow voir di r e to proceed without a court reporter, and in the court’s view, “[e]xcusing the court reporter from taking notes of voir

dire is not, in and of itself, ineffective assistance [citations ] or a viola

tion of due

process [citati ons].” People v

. Ash , 346 Ill. App. 3d at 813-14.-24- Inlight of

this unbro ken line o f prece dent, whi ch the ap pellate court in this case applied properly , the majority’s char acterization

of the case as unique or unu sual is u nfounded. The problem presented by this case , failure

to record voir

dire as Rule 60 8(a)(9 ) requir

es, is, i n fac t, all too co mmon . Its freq uent r eoccur rence i s perp lexi ng. Giventhe clea

r langu age of the rule , it is difficult to understand why

a trial court

would suggest

that conducting jury

selection without the presence of a court reporter might be appropriate or permissible. As

we held in Bright v. Dicke , 166 Ill. 2d 204, 210 (1995), and as the majority reminds us, our rules are not suggestions. They have the force of law, and the presumption must be that they are to be obeyed and enforced as written. Rule 608(a)(9)is no different. If trial courts
are unwilling to comply, it is incumbent on us to amendthe rule’s provisions to include appropriate consequences for f ailure to follow it. Fashi onin g ad hoc remedie s as the ma jority does here is unsound, especia lly where, as in thiscase, doing so requires the court to ignore an unbro ken line o f cases dating b ack ove

r 30 y ears. Inan e ffo rt to justif

y its approac h, the maj ority

attempts t

o distingu ish this case from past precedent on the gr ou nds that it involves a situation in which the failure to record voir dire is tied to

a specific claim of prejudice by the defe n dant, namely , that it hampered his ability

to establish thathe was denied equal protection under the principles established by the United States Supreme Court in Batson v. Kentucky , 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Ac co rd in g t o t he ma jo ri ty, remand f

or furth er proc eeding s is necessary in order to dispel any notion that our court condones racial discrimination in jury

selection in contravention of Batson . Slip op. at 14. Ishare my c olleague’s co ncern wi th honoring the precepts of Batson . Contrary to the majority , however, I do not believe that this

case can properly be

characterized

as presenting a Batson claim. As

a prelimina

ry matter a nd as the majority

acknowl e dg es, no mention of Batson w as m ade in ei ther the posttrial motion file d by

defense counsel or the pro se posttrial motion submi

t ted b y defenda

nt himself. The suggestion t

hat Bat son considerations might be relevant was inject edint o the case for the first time by defendant’s counsel on appeal. Even then, it was not the focus of defendant’s petit ion for leave to appea

l, his brie f or his re

ply brief. In fact, when defendant’s-25- reply brief me ntions Bat

son , it i s not to buttress any claim of ra cial discrimination in this cas e, but m erely to illustrate why defenda nt believe s, as a m atter of policy, tha t strict enforcement of the court reportingrequirement in Rule 608(a)(9) is so i m portant. When defendant speaks of possible Batson -relate d problem s in this con text, he refers to “a hy

pothetical defendant,” not himself. Wholl y aside from these considerations, I do not believe tha t appella te counse l’s Batson analy sis is meritor

ious. That there might be an actua

l Batson problem in

this parti cular c ase is predicated on a document sty led “af fidavit” which was appended to defendant’s pro
se posttrial motion and motion to suppress confes sion . In that affidavit, defendant stated: “Jud ge Maher I know y

ou tried to be fair as possible and you

was but I f

elt a pred

judice [ sic ] and discr imana ting [ sic ] patter[n] going on w

ithth e j ur y. I’m not predjudice [sic ] but Istrong fe el s ome of the jury was. I mean let’ s look at it eleven white people and one black person ***.” The affidavit then

continued with the charge that the one black person
onthe jury was likely

to have been biased against defe ndant because her brother had recently

been murdered and she still carried “emotion ’s [ sic ] about guns and people being shot.” I

n addition, the affida vit asserted that the lone black juror knew defe ndant and had lied when the court

asked here whether she knew a nyone involved i

n the case. Along with this affidavit, defendant’s appellate counsel also cited

anallega tio n in trial counsel’s posttrial motion regarding the composition of the jur y. T hat allegation, wh

ic h paraphrased defendant’s affidavit, stated simply that “of the twe lve jurors in this cause, there was only one black and when the court asked said black lady if she knew any

one, either the attorneys or a

ny of the p roposed witnesses or the Defen dant she state d she did not know the Defend ant but in reality said Defendant has subseque

ntly learne d that the

said black lady did know him.” Con trary to the majority’s view, these a ssertions do not echo langua ge in Batson . The Batson de cisi on did not pertain to the bias that may result fr om personal acqua

intance . It di d not even

address-26- the bias that ma y result wh en the members of the jury happen to be of a different race from the de fendant. Rather, it was concerned specific ally

with purpo seful disc

rim i nation by the State in the selection of the jury thro ugh the use of peremptory challenges. Batson v. Kentucky , 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). Nothing in any of the

materia ls filed by defenda nt or on his

behalf inthe trial

court ch arges that such purposeful discrimination by the State occurred here. A pattern of discrimination by

the jury , which is what defendant alleged, is analy tically and constitution al ly distinct froma pattern of

discriminatory strikes ag ainst black venire members by the prosecution, which is wh at the defendant in Batson alleged. Batson v. Kentucky , 476 U.S. at 83-84, 90

L. Ed . 2d at 78- 79, 106 S. Ct. at 1715-16. While it may be true that the jury ended up with 11 white jurors and only one Af rican American, there is no ind ication that this compo sition was the result of anything other than the de mo gr ap hi cs of

Pe or ia Co un ty. To support its view thatthis case is properly viewe d as presenting Batson concer

ns, the ma jority asserts that “the State does not di spute that defen dant’s complaint about the racial composition of his jury

was a Batson claim.” S lip op. at 9 n.4. The major ity’ s implicat

ion is that the State, in its bri ef, som ehow con ceded that arg

uments advanced by defenda

nt and his attorney in the trial cour t were predicated

on Batson . The State made no such concession. So far as Ican tell, the question of Batson is not evenmentioned in the State’s brief. It did notneed to be

mentione d becau se it was n ot essent ial to the State ’s arg

uments in su

pport of t he trial c ourt’s jud

gment. Inaddress ing the q

uestio n of w hy Batson was not sp ecifica lly raised in the trial court, my collea gues fail to consider an obvious explanation, namely, tha

t counse l recognized that no grounds for a Batson challenge existed. Instea d, the major it y i ntimates that defendan t’s trial couns el refr ained from i nvoki ng Batson out of

concern that doing so would have required him to argue his own ineffe ctivene ss. I rega

rd such a s u ggestion as wholly unjustified. Rather than assuming that an attorney’ s representation was tainted by self-i nterest

or otherwise flawed, we must assume, absent evidenc e to the contrary , that counsel satisfied his pr ofes sional obl igation s. Indeed, ther e is a strong presumption under Illinois law that the per formance of a defendant's attorney fell within the rang e o f-27- reasona bly adequate representation. People v. Owens , 129 I ll. 2d 303, 318 (1989). M

y personal experience has been that such a presumption is justified , partic

ularly when def

ense cou nsel is as experienced as defendant’s trial counsel was in this case. When counsel i

n this cas e acquie sced in

dispensing with a

court reporter for voir dire , they did so wit h the u nders tandi ng t hat the report er would be available in the event that a problem ar os e requiringthat a record be made. Had t he State’ s exercise of its peremptory

challenges raised a Batson issue, there is no re ason to believe that defendant’s lawy er would not have exercised this option and summoned the reporte

r to rec ord the pr

oceedin gs. Based on the record before us, it appears that he was diligent in all other a spects of his representation. That he did not dee m it necessary to c all in the reporter to make a record of wh at occurr ed dur ing voir dire is therefore not evidence of lack of effe ctive re present ation. I t is evidence of lack of error. Fi na ll y, I am p

uzzled by the reme dy f

ashioned by m y c olleag ues. That is so for th

ree re aso ns . First, r

emanding for a he aring t

o reconstruct

w hat took place d uring voir dire is not a resolution defendant himself has requested. Inde ed, in his reply brief de fendant contends that anything le ss than a full recor ding of the voir dire , whichwas not made and does not exist, will be inadequate. Second, to the extent that a record of what took place could be re constructed, the time to attempt such reconstruction was immediately af

ter the trial concluded. As not edin McClurg, Morris , and Culbreath , our rules provide for alternate mea ns fo r preserving the record, a nd if a defend ant fails to avail himself of those alternatives he can no t complain on appeal that the failure

to provide a court reporter during voir dire constitutes reversible error. Third, even if some principle of justice could excuse defendant’s failure to act earlier, the passag e of time has probably doomed a ny realistic hope of

reconstructing the record of voir dire

now. As a

result, the rema

nd ordered by

the majority is , i n t he en d, li ke ly t o be ameaningless act. The cas e is almost certain to return to u s in essentia lly t he same p osture a s it is

now. What then? Not

hing in the majority’s prese

ntanalysis explains what the next step should be. For the foregoing

reasons, I believe tha

t the majority ’s analy

sis is unsound and that the remedy it fa shions is ill conceived. In my view,-28- the appellate court resolved this case corre ctly under t he law. Alth ough the majority did not reac h defendan

t’s r emaining issue pertainingto counsel’s failure to tender an instruction on identification, I be lieve th a t the appellate court resolved that issue

correc tly as well. The appellate court’s judgment should theref ore be affirme d. Accor

dingly , I re spectfu

lly d issent.